As part of a settlement agreement between the Department of Justice and Friendly's Restaurants Nationwide, Friendly Ice Cream Corp has agreed to make its over 700 restaurants accessible to individuals with disabilities. This is the largest settlement DOJ has negotiated. (The accessibility standards differ depending on when the restaurant opened) So next time you visit a Friendly's and it looks like they are busy with a make over, give'm an "Atta Boy." They are leading the way in a changing world.

ARE DRUG ABUSE & ALCOHOLISM COVERED DISABILITIES?

The Rehabilitation Act (Act), as amended by the Americans with Disabilities Act (ADA) no longer obligates an employer to accommodate an employee's active drug addiction as a disability. The duty to accommodate alcoholism has also diminished. Reasonable accommodation provisions of the ADA "does not affirmatively require that an [employer] must provide a rehabilitation program or an opportunity for rehabilitation for any job applicant... or any current employee who is a drug addict or alcoholic against whom employment-related actions are taken... (Emphasis mine. Ref: Senate Report No 116, 101st Congress, 1st Session).

"Current use" is the key issue when defining protection under the Law where alcohol or drugs are involved. Active users/abusers are not covered under the law. There are minor differences depending on which abuse you are dealing with.

DRUG USE

The ADA excludes from the definition of individual with a disability one that is currently engaging in the "illegal use of drugs."* Illegal use of drugs is defined under both Acts as: "the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act... Does not include drugs taken under supervision of a licensed health care professional or other uses authorized by the CSA or other provisions of federal law."

*Note: ADA directly amends the Rehabilitation Act to make the same exclusion.

Interpretive guidance to ADA Regulations 1630.2 states that employers may discharge or deny employment to persons who illegally use drugs, on the basis of such use, without fear of being held liable for discrimination.

ALCOHOL USE

An agency "may hold an employee who... is an alcoholic to the same qualification standards for employment or job performance and behavior [to which the agency] holds other employees, even if any unsatisfactory performance or behavior is related to the... alcoholism of such employee." It also states that "... [An agency] may require that employees shall not be under the influence of alcohol... at the workplace." (Ref: Ref: 42 USC 12114(c)(2) & (4).

WHAT ABOUT "FIRM CHOICE?"

Firm choice refers to the offer of a rehabilitation program before action is taken to discipline/dismiss an individual who is an alcohol or substance abuser. It is no longer a requirement that employers offer a firm choice before disciplinary action can be taken. The Act strongly encouraged employers offer such rehabilitation programs or provide an opportunity for rehabilitation. Critical to these cases is a determination that the employee was discharged on the basis of misconduct and not on the basis of a disabling condition. Critical to the processing of these cases is a determination that the employee was discharged on the basis of misconduct and not on the basis of a disabling condition.

ARE THERE EXCEPTIONS TO THE ABOVE RULES?

Yes. Individuals who: 1) successfully complete a supervised Rehabilitation Program & are no longer using; 2) are participating in a supervised Rehabilitation Program & no longer using; or 3)* are erroneously regarded as engaging in use, but are not using, are protected under the law.

*Note: Permits drug testing to ensure.

It is important to remember when processing any complaint of discrimination – the law requires the Equal Employment Opportunity Commission (EEOC) and the Courts to apply the same "standards" when deciding cases governed by either statute. The standards used are those of the ADA.